A lesbian couple living in Pacifica faces being split up as soon as this Friday because federal immigration law discriminates against same-sex couples.

Shirley Tan, a 43-year-old native of the Philippines, is set to be deported despite the fact that she's been in a relationship in the United States for 23 years with Jay Mercado.

Mercado, 48, is a naturalized citizen who's also from the Philippines, and the couple, who married in 2004 and have registered as domestic partners, have twin 12-year-old sons.

"I hope that I can stay here, because I don't want to be apart from my kids ... they are my life, and really we are a solid family, and I love them so much that I don't want to be separated from them," Tan said.

[Updated, Thursday, April 2: The Bay Area Reporter learned today that Tan has received a short reprieve. A two-week extension was granted after Congresswoman Jackie Speier (D-San Mateo) spoke with an immigration official, her office told the B.A.R.

Mike Larsen, Speier's communications director, said that Speier spoke with an immigration official "high up" Wednesday night and asked for an extension in order to obtain documentation regarding Tan's case from the Philippines.

Speier and her staff had been working to figure out what they could do to help Tan and, "Congress breaks for spring recess today, so we were stuck," Larsen said Thursday.

Larsen said that the immigration official agreed that if Tan's attorney, Phyllis Beech, filed a request to delay the deportation, they would hold off for two weeks.

He said Speier spoke with the official privately and he did not know the official's name.

Beech did not immediately respond to a request for comment.

"It's not a final thing by any stretch, but it gives Ms. Tan a little bit of breathing room to get everything that is necessary to make her case," said Larsen.

When Tan was 14, a cousin shot her in the head and killed her mother and sister.

"The first information we got … was a telling of the story," said Larsen, so the question for Tan was, "What else do you have here?"

"If we're going to bat, we want to be armed," said Larsen. He added that immigration employees "don't make the laws. They are restricted by DOMA here just like everybody else. They have been very, very helpful."

DOMA is the Defense of Marriage Act, a federal law that restricts the government from treating same-sex relationships as marriages.]

While Tan and Mercado face the most difficult of circumstances, federal legislation has been reintroduced in Congress that would protect binational same-sex couples. Unfortunately, it comes too late for Tan and Mercado as no action has been taken yet by Congress.

The Uniting American Families Act – House bill 1024 and Senate bill 424 – is proposed federal legislation that would protect thousands of couples like Tan and Mercado. The bills were re-introduced February 12.

The act would enable gay Americans to sponsor their foreign same-sex partners for legal residency in the United States. Under the current Immigration and Naturalization Act, an American citizen can only sponsor his or her opposite-sex spouse for a green card, representing legal residency.

Congresswoman Jackie Speier (D-San Mateo), who represents the district in which the women live, and Senator Barbara Boxer (D-California) are co-sponsors of the UAFA.

There is some hope that Congress will act immediately and pass a private bill that would allow Tan and Mercado to stay together in the United States or have time to make plans to move their family out of the country. Otherwise, Tan will likely be sent back to the Philippines, a country she hasn't been to in more than 20 years and where she fears her life will be in danger.

Boxer and Senator Dianne Feinstein (D-California) are said to be working on the private bill.

Spokespeople for Boxer and Feinstein did not provide comment by press time.

In a statement, Speier said, "Shirley Tan's unacceptable situation is just one example of why Congress must pass immigration equality legislation. ... I am confident that any official who examines the facts in Ms. Tan's case will come to the conclusion that this hard-working mother of two American citizens should not be deported to a country where she has no support network and was the victim of a horrific act of violence."

Tragic past

In 1979, when Tan was 14, a cousin shot her in the head and murdered her mother and sister because he wanted a larger share of a family estate, according to documents related to her case. The cousin spent at least 10 years in jail.

Tan first came to the United States as a visitor in 1986, stayed for about six months, then returned to the Philippines. She returned to the United States in 1989 and has stayed in this country since then, according to the documents, which also state that Tan failed to leave the United States by March 22, 1990, as her visa required.

In 1995, Tan applied for asylum based on past persecution and fear of future persecution from her cousin, but her case was denied. Tan fought that decision but in May 2002, the Board of Immigration Appeals gave her 30 days to leave the country voluntarily or be deported.

Tan claims that she didn't know about that decision until it was far too late. Her recent motion to the Board of Immigration Appeals to reopen proceedings and stay her deportation while her motion is pending states that the notice had gone to an old address for Norma Molinar, the attorney representing her at the time.

According to Tan's account, posted on the blog of Melanie Nathan, a family law mediator with mediation firm Private Courts who's serving as the family's spokeswoman, two officers came to the couple's door around 6:30 a.m. and eventually told her of the 2002 deportation order. Mercado said the incident happened January 28. The motion filed with the Board of Immigration Appeals states that the officers were from Immigration and Customs Enforcement.

Tan was placed in handcuffs and taken to the immigration office in San Francisco, where she was put in a jail-like cell before being released at around 5:30 that afternoon, according to her written account.

After her release, Tan wrote, she was taken to the ICE Intensive Supervision Appearance Program, where a monitoring device was put on her leg. Tan now reports to the program three times a week.

Lori Haley, a customs enforcement spokeswoman, said she's not permitted to talk about individual cases, but when asked about the possibility of officers appearing at someone's door at 6:30 a.m. and taking them in handcuffs to the agency's office in San Francisco, Haley said, "If people had a final order of immigration issued by a judge and were targeted by our fugitive operations team, that could happen, yes, if they were found to be out of status."

Options

Tan's options appear to be dwindling.

Nathan said that Feinstein's and Boxer's offices have been working on a private bill for Tan, but "a private bill is highly unlikely."

Speier's office also said it was looking into action the congresswoman could take.

"We're doing everything we can. [Speier's] instructed us to see what the remedies are," said Mike Larsen, Speier's communications director, who noted they found out about Tan's case "pretty late in the process."

"If we can introduce a private bill that will help her, then she's instructed staff to find out what can we do in time to help her out," said Larsen.

"Our understanding is that in the Senate when a private bill in an immigration case is introduced, the deportation is stayed immediately, until the end of that term of Congress," added Larsen, who said in this case that would be early January 2011.

"In the House, the order to stay would not occur until after the private bill made its way through the committee process, so we are currently trying to see ... if there's a way to speed up the committee process or if there's some other route that we are unaware of," said Larsen.

He added that based on what they know of Tan's case, "on the face of that ... it appears she should at least get a hearing to determine the viability of her claim, because it does seem to be this previous immigration lawyer, for whatever reasons, didn't seem to keep her client adequately informed."

In the motion filed with the Board of Immigration Appeals, Phyllis Beech, Tan's current attorney, faults Molinar for failing to notify officials of a change in her address.

A public reproval was filed against Molinar with the State Bar of California in December 2006 based on claims that she'd failed to inform previous clients that appeals related to their immigration cases had been denied.

Molinar told the Bay Area Reporter that the Board of Immigration Appeals had sent the 2002 decision regarding Tan to an address that Molinar had never given to them.

Molinar also said that in regards to her State Bar reproval, she was never suspended and that she's completed a related two years of probation.

She said she could have litigated the State Bar situation, because "the people that accused me committed fraud themselves," but she decided not to because of time and finances.

Susan Eastwood, a spokeswoman for the Executive of Office for Immigration Review, which the Board of Immigration Appeals is a branch of, said Tan's motion is pending, but that she couldn't comment on when there might be a decision.

According to Nathan's blog, Tan's attorney can't request an emergency stay of deportation until Tan is in custody on Friday.

Julie Kruse, policy director for Immigration Equality, a group that's been working to draw attention to Tan's case, said it's "one more horrific example of how discriminatory immigration laws are ripping families apart."

Mercado said the couple's children have been crying with them every day and the family has been praying at night.

"It's like our lives were ruined," said Mercado.